Legal Remedies That Are Available When A Contractor Fails To Perform Construction Work

• Published date: 15 February 2023
• Subject Matter: Corporate/Commercial Law, Real Estate and Construction, Contracts and Commercial Law, Construction & Planning
• Law Firm: Sariya Al Hadi & Ali Al Rashdi & Co.
• Author: Mr Ali Al Rashdi

The contractor's main obligation is to perform the work in the manner and in the period agreed in the contract. If the contractor breaches his obligation, then the employer may either request specific performance (performance in specie) or termination of the contract with compensation in either case if it is justified. He may request performance of the obligation by another contractor at the expense of the first contractor. We will show below when the court may order the contractor to perform in specie, and how to terminate the contract if the specific performance is not possible.

Obligating the contractor to perform the contract

The employer may file a lawsuit against the contractor to compel him to complete the agreed contract work pursuant to Article 258.1 of the Civil Transactions Law which reads. "The debtor shall be compelled to execute his obligation after being served a notice through specific performance if possible". If it is proven that specific performance is possible, and that it does not require the contractor's personal intervention to carry out the work, the court shall order the contractor to perform the contract. If the specific performance entails hardship for the contractor, the court shall only oblige the contractor to compensate the employer in accordance with Article 258/2. Omani courts adopted this principle in a number of their judgments. For example, the two judgments No. 476/90 and No. 260/88 rendered by the Public Authority for Settlement of Commercial Disputes.

Appointing another contactor to complete construction work at the contractor's expense

The employer has this solution based on the provision of Article 259/2 of the Civil Transactions Law, which reads: "If the debtor fails to perform the work, the creditor may request the permission of the court to perform said work. He may also perform the same without permission when necessary; execution in both cases shall be at the cost of the debtor". It is understood from the above Article that the failure of the contractor to complete the works is not sufficient to appoint another contractor to complete the construction works, but rather the court's approval must be obtained to appoint another contractor. Excepted from this, is the case of necessity that allows the employer to appoint another contractor directly without the court's permission.

The employer can terminate the contract without the contractor's consent

Courts adopted this principle in several judgments and confirmed...